The New Jersey Assembly unanimously passed a bill May 24, 2012, that would prohibit sending text message advertisements to New Jersey residents without the recipients’ prior permission. If enacted, Assembly Bill No. 1218 could potentially broaden the scope of messaging services for which express consent is required.
The bill defines “text messaging” broadly as “the wireless transmission of short messages of text by means of a cellular telephone, a paging or message service, a personal digital assistant or similar telecommunications technology.” Unlike the Telephone Consumer Protection Act (TCPA), the federal law that regulates telephone solicitation including text message advertising, the New Jersey bill is not limited to messages sent to a telephone number using an automatic telephone dialing system. The bill therefore could apply to a broader range of messaging services, beyond Short Message Service (SMS) and other protocols designed to transmit messages to mobile telephone numbers. As technology evolves to enable the use of alternative protocols for messaging services (most push technology, for example, utilizes a persistent IP connection), these distinctions in state law definitions may become increasingly relevant. The New Jersey bill also would require any telecommunications company offering text messaging services to offer an option allowing customers to block all incoming and outgoing text messages.
Any violators under the bill could incur penalties up to $10,000 for the first offense and $20,000 for subsequent offenses, as well as punitive damages, treble damages and costs to the injured parties, as enforced by the New Jersey Attorney General. Unlike the TCPA, the New Jersey bill would not provide for a private cause of action.
New Jersey is one of several states to address the issue of unsolicited text message advertising this legislative session. A Wisconsin law, effective April 2012, prohibiting the use of an electronically prerecorded message in telephone solicitation without the consent of the recipient , includes a “text message” in its definition of a “telephone solicitation.” The New York Assembly has also introduced a bill this session that would prohibit the sending of unsolicited text message advertisements and, unlike the New Jersey bill, would permit a private cause of action.
The New Jersey Senate received the bill May 31, 2012, and referred it to the Senate Economic Growth Committee.